Does the state’s Open Door law apply to the ABA working group?

At the direction of Gov. Mike Braun, a working group met regularly throughout the summer to draft a set of recommendations that would impact thousands of young Hoosiers — but most of the work was done behind closed doors, setting up questions about its compliance with transparency laws.

The working group met to discuss how the state could contain growing Medicaid costs related to Applied Behavior Analysis therapy, which has grown exponentially in Indiana. Parents of autistic children increasingly rely on the therapy, which isn’t without its critics.

Braun established the ABA working group by executive order in February, but its 21 panelists never openly discussed its business before the public. The state believes the group, organized by two cabinet secretaries, doesn’t need to comply with Open Door or video streaming laws.

According to the group’s website, members met six times for closed-door meetings between May and August and hosted five listening sessions that were open to the public. Each is summarized online with attendance and takeaways.

Additionally, 20 of the group’s members signed nondisclosure agreements, which two Democrats criticized in a joint statement last month. According to Marcus Barlow, the deputy chief of staff for the Family and Social Services Administration, those agreements expire following publication of the final report, which is due later this year.

Having nonpublic meetings and NDAs allowed some working group members who are parents to openly discuss their experiences with ABA therapy, he said. State employees in the group, including the one who didn’t sign an NDA, would additionally be prohibited from speaking about individual treatment experiences because of HIPAA, Barlow added.

HIPAA, shorthand for the Health Insurance Portability and Accountability Act, protects an individual’s medical records but only applies to covered entities and business associates, such as health care providers or third-party vendors. As the health care provider for thousands of young Hoosiers utilizing ABA therapy under Medicaid, some state employees would fall under that definition.

If the working group is subject to the state’s Open Door Law, it likely also must comply with the newly enacted streaming requirement.

As of July, governing bodies are expected to livestream their meetings — down to local units of government meeting in their public buildings, with some exceptions. Additionally, meetings must be archived for at least 90 days.

What about the Open Door Law?

A 2022 edition of the “Handbook on Indiana’s Public Access Laws,” from former Public Access Counselor Luke Britt and former Attorney General Curtis Hill, overviews the 1977 law defining open meetings.

“Generally, all meetings of the governing bodies of public agencies must be open at all times so members of the public may observe and record them,” the handbook notes, though there are exceptions.

State code defines a public agency as, “Any board, commission, department, agency, authority, or other entity, by whatever name designated, exercising a portion of the executive, administrative or legislative power of the state.”

This explicitly includes bodies created by executive order, “except for medical staffs or the committees of any staff.”

FSSA, in a statement through Barlow, argued the working group didn’t qualify as a public agency, “because it was not created to advise a governing body of a public agency. The Executive Order directs the group to report solely to the Governor, who is not a ‘governing body’ under the statute, which requires ‘two or more individuals.’”

Nor, the statement continued, can the working group be considered a “governing body.”

While a governing body includes bodies taking official action on public business — which includes receiving information and making recommendations, according to law — FSSA argued that the members don’t qualify.

“Given that the ABA working group is neither a public agency nor a governing body under Indiana law, the Open Door Law does not apply. NDAs are a lawful tool to support candid dialogue and protect sensitive information as the group fulfills its charge,” the statement concluded.

According to the executive order, the group’s written report is due to Braun by Nov. 30, 2025 and must include “three recommendations for meaningful ABA cost containment” with pros and cons of each.

Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.